As most of my students are aware, Title VII does not outlaw discrimination on the basis of homosexuality- at least not yet. However, many plaintiffs have never-the-less been able to bring a claim based upon a claim of sexual sterotyping. The theory in these types of cases is that a man or woman does not conform to the way the employer wants him or her to act and such cases rely on Price Waterhouse v. Ann Hopkins Supreme Court case. ( I moderated a panel at Hofstra Law School a few years ago which featured Ann Hopkins)

Law.com carried an interesting story about this and focused on a recent 3rd Circuit ruling, here. The article described the case as follows:

Although federal workplace discrimination laws don't cover sexual
orientation discrimination, a federal appeals court has ruled that an
effeminate gay man must be allowed to pursue a Title VII claim alleging
that he was targeted for harassment because he failed to conform to
"gender stereotypes."

In Prowel v. Wise Business Forms Inc.,
the 3rd U.S. Circuit Court of Appeals found that in such cases, it is
sometimes difficult to discern whether the harassment a worker suffered
"was because of his homosexuality, his effeminacy, or both."

The Department of Transportation has reinstated a 2008 final rule
mandating that transportation industry workers in safety-sensitive
positions submit to direct-observation urine testing for all
return-to-duty and follow-up drug tests. See Federal Registernotice
published July 30.Collective bargaining agreements between employers
and unions that prohibit or limit the use of direct-observation
collection will have no effect. "Employers and employees... do not have
the authority to agree to avoid compliance with the requirements of
federal law." When the final rule takes effect on
August 31, conducting all follow-up and return-to-duty testing using
direct-observation collections will be a requirement of federal law and
"any contrary provisions of CBAs in the present or in the future will
not be effective."

Here is a new one.In McNeil v Charlevoix County, ___Mich.___(Mich S.Ct, July 21, 2009), the court holds that a local regulation prohibiting an employer from discharging, refusing
to hire, or otherwise retaliating against an employee for exercising
the right to a smoke-free work environment, and which also provides
employees with a private cause of action to seek its enforcement, does
not contravene the law of at-will employment. Employers affected by the regulation argued that
because it impinged on an employer’s common law right to discharge an
employee at will, the regulation violated public policy and was,
therefore, void. Justice Markman, writing for the dissent, argued that
he would not extend the exceptions to at-will employment to include
local regulations "at the very least where such regulations conflict
with statewide public policy." However, the majority stated, "[g]iven
the Legislature’s statutory mandates to minimize the toxic effects of
smoking on human health, the authority granted in the [Public Health
Code] to local health departments to prevent and control human health
hazards and the facts of this particular case, we disagree with the
partial concurrence and partial dissent’s view that the [public policy]
exceptions to the at-will employment doctrine cannot possibly apply
here." Thus, the court upheld the regulation.

One of the advantages of editing a blog is that you get to engage in self-promotion. The Las Vegas Sun recently interviewed me and included me my comments along side one of the giants in labor law, Bill Gould who is a prof at Stanford Law School and who served as Chair of the NLRB during the Clinton Administration. I was quoted as saying that the FLSA applies to undocumented Aliens even after the Hoffman Plastics Supreme Court decision. A copy of the article can be downloaded here. Download LasVegasSun

Warfield v Beth Israel Deaconess Medical Center, ___N.E.2d___ (Mass. Sup. Ct. July 27, 2009), is an interesting post-Pyett state law case. The court held that a former chief of anesthesiology was not required to arbitrate her
statutory discrimination and retaliation claims under state law,
The court concluded that the statutory claims did not
fall within the scope of the arbitration clause contained in her
employment agreement. Nor was the plaintiff required to arbitrate her
common law tort claims for defamation and tortious interference with
contractual relations, the court held, since these claims were wholly
intertwined with the statutory claims and judicial economy dictated
they be tried in the same proceeding. As an initial matter, the high
court stated employment discrimination claims arising under
Massachusetts’ antidiscrimination statute are arbitrable, and the
parties here correctly assumed as much. The issue, rather, was whether
the parties contractually agreed to arbitrate them. That determination
turned on the scope to be given the phrase "arising out of employment"
in an employment arbitration agreement when a claim of discrimination
is raised under the state statute, a matter of first impression for the
court. The court held, consistent with the public policy against
workplace discrimination reflected in the state statute, that any
agreement by an employee to limit or waive rights or remedies conferred
by the state statute is enforceable "only if such an agreement is
stated in clear and unmistakable terms." Citing the competing public
policy in favor of arbitration (as well as the US Supreme Court’s
ruling 14 Penn Plaza LLC v Pyett),
the state high court noted that, under its standard, the parties remain
free to agree to arbitrate statutory claims—but they must do so
unambiguously.

Boucher v Shaw, __F.3d___ (9th Cir. July 27, 2009), is an interesting FLSA case.
The 9th held that individual managers can be liable for unpaid wages under the FLSA. The lawsuit was against a hotel and its managers for
unpaid wages under the FLSA and Nevada law. The managers acted,
respectively, as the hotel’s chairman and CEO, labor/employment point
person, and CFO. They each had an ownership stake in the hotel. The
state law claim had already been disposed of: The Ninth Circuit
certified to the state high court the issue of whether the managers
could be held individually liable under state law; the Nevada supreme
court ruled they could not, so the claim was properly dismissed. As to
their federal claim, the appeals court noted that the FLSA defines an
employer as anyone who acts "directly or indirectly in the interest of
an employer in relation to an employee." This definition is not limited
to the common-law definition, but instead stems from the circumstances
of the entire economic activity. When individuals exercise control over
the economic relationship, they are liable under the FLSA. Given the
positions the managers held, the appeals court concluded they exercised
this control and thus were liable. Moreover, citing precedent, the
Ninth Circuit ruled that the bankruptcy proceedings in which the
company was enmeshed had no effect on the claims against the individual
managers.

NY Times labor reporter Steven Greenhouse wrote an excellent August 29, 2009 article revealing the practice of Regis Corporation that is apparently encouraging employees, but not requiring them, to sign a document agreeing to insist on a union election. “In order to preserve my right to a secret-ballot election, and for my
own protection, I knowingly and without restraint and free from
coercion sign this agreement revoking and nullifying any union
authorization card I may execute in the future.” Jeff Hirsch over at workplace prof blog believes that this is a violation of 8(a)(1) and the article quotes Stanford Law Prof Gould has indicating that this practice is very close to the infamous yellow dog contracts which have long been outlawed.

Though my gut tells me that Jeff is probably right, I am not so sure. Yellow dog contracts required employees agree not to join a union in advance. Here, the employees are only agreeing in advance to insist on a union election. The employees can still vote their conscience. Of course, any employer implicit threats may interfere with employee free choice. But if the employee is truly signing this card on his own, does that interfere with the laboratory conditions necessary for their to be a free and fair election?

The EFCA Report, a management side blog, reported on August 28, 2009 that Congress will not get to the Employee Free Choice Act this year. It quotes Senate Majority Leader Harry Reid as saying that the Senate has too many things on its plate. As the blog states:

Roll Call
reports that Senate Majority Leader Harry Reid (D-NV) said Thursday
that passing EFCA is no longer a priority for the Senate this year:

Speaking at a Las
Vegas Chamber of Commerce, Reid said the chamber’s schedule is too
crowded to consider the Employee Free Choice Act, otherwise known as
“card check.”

"We have too many other things on our plate,” Reid said.

But even if the
Senate’s schedule was freed up later this year, it is unlikely Reid
would bring the bill to the floor short of major changes to the
legislation. Republicans have universally panned the bill — as have a
few Democrats — making it impossible for Reid to break a Republican
filibuster.

The passing of Senator Kennedy, of course, leaves the Senate with only 59 Democrates, one shy of the magic number of 60. Additionally, I have to believe that the Health Care Debate also has something to do with this decision-if such a decision has been made.

In any event, even if EFCA is tabled for now, I have to believe that it will be brought up for a vote at a later time during the Obama Presidency.

Workplace Prof Blog reported on August 26, 2009 that a cert petition has been filed in another 2 member NLRB decision case, the First Circuit's Northeastern Land Services case. The legal issue is that can the Board act when it has less than a quorum. Normally, the Board has 5 Members. But does the Board have the authority to act when they only have 2 Members?

Adjunct blog has been watching this issue for some time. Even though the President has nominated several individuals to the Board, this issue can repeat again-given the political nature of the NLRB.

Winspear v Community Dev, Inc, ___F.3d___(8th Cir. July 29, 2009), is an interesting case.
The 8th held that a lower court erred when it treated an employee’s hostile work
environment claim as if it were a constructive discharge claim. The employee in this case had contended with the
owner’s wife (the office receptionist), who told the employee that she
could speak with the dead and that she had been communicating with the
employee’s brother, who committed suicide four years earlier. On a
daily basis, the owner’s wife told the employee that his brother was
suffering in hell and that he would also go to hell if he did not "find
God." Despite his frequent requests that she stop, she grew more
insistent with his disinterest, and he grew increasingly uncomfortable
at work. The employee spoke to the owner about his wife’s behavior, but
the owner refused to remedy the situation; he merely confirmed that his
wife could communicate with the dead and advised the employee to heed
the wife’s advice. The employee filed suit under Title VII, claiming he
was subjected to a hostile work environment due to religious bias. On
the employer’s motion for summary judgment, the district court treated
the employee’s claim as if it were a constructive discharge claim and
required elements unnecessary to resolve a hostile work environment
claim. The employee’s complaint did not allege constructive discharge
and, despite the employer’s assertions, the employee never changed his
pleadings so that his hostile work environment claim became a
constructive discharge claim. Moreover, the district court never
reached a specific finding as to whether the employee suffered hostile
work environment discrimination. The district court recognized the
employee may have raised a genuine issue of material fact about whether
the conduct of the owner’s wife constituted a hostile work environment,
but the court resolved the claim as though it were a constructive
discharge. Hostile work environment and constructive discharge claims
may be wholly distinct causes of action under Title VII, noted the
Eighth Circuit. This case illustrates that sexual harassment is not the only form of unlawful hostile environment discrimination.Mitchell H. Rubinstein

The New York Times ran a revealing August 25, 2009 article outlining the dim employment prospects for today's law students, here. As the article states:

This fall, law students are competing for half as many openings at big
firms as they were last year in what is shaping up to be the most
wrenching job search season in over 50 years.

For students now, the promise of the big law firm career — and its
paychecks — is slipping through their fingers, forcing them to look at
lesser firms in smaller markets as well as opportunities in government
or with public interest groups, law school faculty and students say.

I know its easy for me to say, but to the law students who may be watching you need to double up your efforts and apply. Also, this article mainly deals with large law firms and there is a lot more to life than big law firms.

So, what should you do? You need to get to know attorneys. Go to bar associations, state and local meetings. Most welcome law students free of charge. Also, go to attorney conferences in your area of interest. I know this will take up your time, but it is necessary.

For additional information, see Professor Levy's earlier post on this blog, here.

Senator Kennedy's wonderful career has been reviewed and discussed throughout the media and in households across America. One thing that I have not seen discussed is the fact that he has been a champion for children and the disabled. He was the sponsor of the 1975 IDEA law and its later amendments which guarantees disabled children a Free and Appropriate Education.

Martino v MCI Comm Servs, Inc, ___F.3d___(7th Cir. July 28, 2009), is an interesting case.the 7th held that a 55 year-old employee discharged in a RIF presented insufficient
evidence of age bias to survive summary judgment. The employee presented a "particularly weak cat’s paw case"
because, even assuming his supervisor, who had referred to him as an
"old timer," was prejudiced, "there were not one, but two
layers of bias-free analysis" between his supervisor and the final
decision, emphasized the court. The indirect method also was unavailing
because the employee failed to show he was meeting his employer’s
expectations or that younger workers were treated better. His
performance excelled on only one occasion when he had the "good
fortune" of being on staff for an historic deal, and his importance to
his employer was waning since his skill set was becoming obsolete. A
number of younger workers were also discharged, but six younger workers
under his supervisor were retained, two of whom were of little aid to
his claim since they were within ten years of his age. The other four,
who were under 40, were difficult cases since they were "far from
stellar performers," but the employee stood out as having lost the
confidence of the sales teams and being poorly equipped going forward.
Also stacked against him was the fact that he was hired only two years
earlier by the same supervisor alleged to harbor prejudice. And, under
the standard articulated by the Supreme Court in Gross v Fin Servs, Inc,
he was required to show that age was the but-for cause of his
discharge. At best, he could show only that his age possibly solidified
the decision, wrote the court .

In the below passage, the Pope also stresses the importance of unions reaching out to other workers who may be less fortunate:

While reflecting on the theme of work, it is appropriate to
recall how important it is that labour unions — which have always been
encouraged and supported by the Church — should be open to the new perspectives
that are emerging in the world of work. Looking to wider concerns than the
specific category of labour for which they were formed, union organizations are
called to address some of the new questions arising in our society: I am
thinking, for example, of the complex of issues that social scientists describe
in terms of a conflict between worker and consumer. Without necessarily
endorsing the thesis that the central focus on the worker has given way to a
central focus on the consumer, this would still appear to constitute new ground
for unions to explore creatively. The global context in which work takes place
also demands that national labour unions, which tend to limit themselves to
defending the interests of their registered members, should turn their
attention to those outside their membership, and in particular to workers in
developing countries where social rights are often violated. The protection of
these workers, partly achieved through appropriate initiatives aimed at their
countries of origin, will enable trade unions to demonstrate the authentic
ethical and cultural motivations that made it possible for them, in a different
social and labour context, to play a decisive role in development. The Church's
traditional teaching makes a valid distinction between the respective roles and
functions of trade unions and politics. This distinction allows unions to
identify civil society as the proper setting for their necessary activity of
defending and promoting labour, especially on behalf of exploited and
unrepresented workers, whose woeful condition is often ignored by the
distracted eye of society.

There is a whole body of legal literature concerning Catholic labor theory. My colleague at St. John's Law School, David Gregory, has written several important articles in this area.

The salary distribution for the Class of 2008 presents the most dramatic bimodal distribution yet of starting salaries for recent graduates from law school. The sharp spike on the right reflects the fact that in 2008 the prevailing starting salary at large law firms was nearly uniformly $160,000. By contrast, the starting salary distribution for the class of 2007, while reflecting a spike at $160,000, also had an elbow that extended out over $145,000. (Click here to see the salary distributions for the Class of 2007 and the class of 2006.) Prior to 2000, starting salaries for new law school graduates were distributed along a more recognizable bell-shaped curve. (Click here for an article that traces the development of the bimodal distribution of starting salaries for American law school graduates.) Since that time, the peak on the right has marched steadily to the right while the peak on the left has remained more or less stationary. The new reality is that very few law school graduates actually make either the median or mean starting salaries, and so it is neither helpful nor accurate to describe starting lawyer salaries using those modalities. (For the Class of 2008, the median starting salary, the red line on this graph, was about $72,000 and the mean starting salary was about $92,000.) It is important for anyone considering a legal education to understand that half of all starting lawyer salaries are less than $72,000 and in fact 42% of them are between only $40,000 and $65,000. By contrast, 23% of all salaries reported were $160,000. Of course, based on recent developments in the marketplace, for the classes of 2009 and beyond the sharp spike over $160,000 is likely to soften and fall back to the left, and we may even see some flattening of this distribution curve over time.

Keep in mind that these figures are more than a year old, reflecting the stats for the class that graduated more than 12 months before the job market completely tanked. The picture will undoubtedly look a whole lot worse next summer when the salary distribution for the class of 2009 is published.

Reese v CNH America, ___F.3d___(6th Cir. July 27, 2009), is another important employee benefits case coming out of the 6th circuit. An employer promised in a collective bargaining agreement to grant
retirees healthcare for life, the Sixth Circuit held. However, a
lifetime grant of benefits does not mean the scope of those benefits
must remain intact. This suit was filed by
retirees after the employer eliminated their PPO health plan and
imposed a managed care plan. The contract and related documents were
silent as to subsequent modifications to the benefits, and the manner
in which the parties had applied the contract provisions suggests the
parties contemplated "reasonable modifications," the court reasoned.
Thus, to the extent the district court held the benefits must be
maintained precisely at the level provided for in the bargaining
agreement, the court was reversed. The case was remanded for the lower
court to determine what types of changes are permissible.

There is an excellent July 31, 2009 New York Law Journal article on the legality of arbitration agreements which contain fee splitting agreements, available here (registration required). The article concentrates on New York law and in particular, Brady v. Williams Capital Group, L.P.,
2009 WL 1151322 (1st Dept. April 30, 2009), where the Appellate Division,
First Department, faced the novel situation where a terminated employee
wanted to compel arbitration pursuant to a provision of an
employer-imposed plan, but sought to invalidate its cost-splitting provision. The
First Department held as a matter of contract interpretation that the
cost-splitting provision trumped any AAA rules argued (though not
ultimately held) to be to the contrary. It invalidated the
cost-splitting part of the arbitration provision, but not the
arbitration provision itself, and therefore compelled arbitration, with
the employer paying.

Sousa v Roque, Jr., ___F.3d___(2d Cir. August 21, 2009), is an important decision to be aware of. The curt held that “The speaker’s motive is not dispositive in determining whether speech
is on a matter of public concern.” The court reversed summary judgment to the Connecticut
environmental protection agency on a former employee’s First Amendment
retaliation claim. The lower court erred in its reasoning that the
employee’s speech, related primarily to complaints about workplace
violence, did not address a matter of public concern solely because he
was motivated by employment grievances. This holding does not negate
the fact that speech on a purely private matter—to redress personal
work-related grievances—is speaking only on matters of personal
interest and does not address a matter of public concern.. “We make clear today, however, that it does not follow
that a person motivated by a personal grievance cannot be speaking on a
matter of public concern.”

After William McBeth underwent sex reassignment surgery and became
Lily McBeth, the two southern New Jersey school districts were she had
been teaching as a substitute decided to keep her on. However, she got
only a handful of assignments since then and is resigning in frustration.
Before her transition from male to female in 2005, McBeth said she
averaged 15 to 18 assignments a year for elementary students in the
Eagleswood school district, and an additional 16 to 20 a year in the
Pinelands Regional School District teaching high school students.
Afterward, she said, she only got two assignments per year at both
districts. McBeth, 75, has sent a letter to the Eagleswood Board of
Education saying she would not return as a substitute this fall, and plans
to give similar notice soon to the Pinelands district. Deborah Snyder, the
Eagleswood schools superintendent, said the district wanted McBeth to
return this fall. She denied bias was involved, adding the district has
hired a permanent substitute to report to work each day and fill in as
needed.

While some parents objected at public meetings to McBeth continuing
to teach after becoming a woman, many students were supportive. Mara
Keisling, executive director of the National Center for Transgender
Equality, said McBeth's experience is a common one for transgender
employees. A survey her group helped to conduct this year of 6,500
transgender Americans found 91% had faced bias at work because of their
transgender status. "I could sue them over the
violation of my medical privacy rights, but what would that accomplish?"
McBeth said. "I'm not in this for the money, and I have to be able to
sleep peacefully at night. I'm just going to enjoy the rest of my life."

A U.S. district court in Virginia has dismissed a high school
principal’s Age Discrimination in Employment Act (ADEA) suit. During
plaintiffs final year as principal of he applied for the position of assistant superintendent of
operations, but the Augusta County School Board (ACSB) chose a younger
principal for the position. The younger principal did not hold a doctorate
as did plaintiff, but he had more experience as a principal. The board cited
concerns about plaintiffs ability to work without supervision, his
management skills, and his professional judgment. During the second half
of Hill’s last year a series of incidents occurred at the
school that convinced the board that he should not return as principal. After his contract was not renewed, Hill transferred to
the position of truancy officer out of the district’s central
office. His application for the principal’s position at another high
school in the district was rejected because of his prior performance. Plaintiff sued, alleging he had been denied the promotion to assistant
superintendent and principal of the other high school on basis of age in
violation of the ADEA.

The court granted the board’s motion for summary judgement, finding that it had
stated legitimate, non-discriminatory reasons for rejecting plaintiff's
applications and that he had failed to demonstrate that its reasons were
a pretext for age discrimination. Noting that an employee bring an ADEA
claim must show that “the adverse employment action would not have
occurred but for the employer’s discriminatory motive,” the
court found that because Hill offered no direct evidence of age
discrimination, his claim must proceed under the alternative burden
shifting-scheme established by the U.S. Supreme Court in McDonnell-Douglas
Corp. v. Green, 411 U.S. 792 (1973). The court rejected plaintiff's argument that
he was the more qualified candidate for the assistant superintendent
position by virtue of his doctoral degree and that the school
board’s explanation was pretextual. Under the ADEA, “an
employer may place more value on any job-related qualification it chooses,
so long as it does not discriminate against a protected individual on
account of age.” As for the principalship of the other high school,
the court found that this decision came after “Hill’s
self-proclaimed worst year of his career” and was made by the very
same who had promoted Hill to his first principalship.